Transcription
Good morning to all of you. I hope you're doing well.
Well, today, this is our second session. This session is dedicated to what is a treaty, after we had last week a full live session dedicated to the interaction of sources of international law: three law, customary law, principle of international law. The objective of today's session is definitely to define what a treaty is, but also, and it's very important because it's a large source of dispute in international law, to distinguish the various types and categories of treaties, and to distinguish treaties from other instruments. And at the end of the day, of course, with this first session, we will actually have a first outlook at the Vienna Convention on the Law of Treaties, which is also called the Treaty of Treaties.
So, talking about treaties, and it's not only because I'm French, but I like this quotation from, um, Charles de Gaulle, which is quite famous also for non-French people. It's a very misogynistic sentence, but it says in French, "Les traités sont comme les jeunes filles et les roses, ils durent ce qu'ils durent," which means, in a way, treaties are exactly like young girls and roses; they last what they last. So I invite you to have, um, a general reflection, probably, on what General de Gaulle wanted to say about it, and maybe we'll be able to discuss it, um, during our future live session. But I think it reveals the position of most states when it comes to treaties.
And, um, a first remark, uh, when we have to define a treaty, you could imagine that it's something that is purely an academic job, but it's not. At the end of the day, because defining a treaty actually has a huge impact on states, because treaties are those instruments that create rights and obligations, but also that give rise to responsibility of states in case of violation. So it's not only for nerd academic people to discuss what is a treaty or not.
And before going and having a look at the Vienna Convention on the Law of Treaties, I like to talk about treaties as somehow reflecting the supreme expression of the will of states, but also the clearest. I mean, it's very clear when you have a treaty, you know exactly what a state, what states do intend at the end of the day. And compared to customary law, I mean, we discussed it last week, I talk about customary law as some kind of waves, you know, like waves, they go, they go away, they come, and they leave. And somehow, there is some a process of sedimentation, but also a process of erosion of law. But when it comes to treaty, well, it's it's very clear what we have. And in most cases, we also have a written form which allows a lot of predictability. So for me, treaty equals will of states, will of the states.
So definitely, when we talk about treaties, as we've been discussing before, we have to study at least a bit the 1969 Vienna Convention. It is also called the Treaty of Treaties. It's a very important document, although I must say already that a few topics are excluded from the Vienna Convention on the Law of Treaties. We're going to see that we're talking only about treaties between states. So treaties between states and international organizations or between international organizations themselves are not encapsulated in the Vienna Convention on the Law of Treaties. And also, something that would be very relevant that is not actually encapsulated in the Vienna Convention is the effect of war on the law of treaties. So it's something we are going to discuss at a later stage when we are going to discuss about the applications of treaties.
So this is how the Vienna Convention on the Law of Treaties defines a treaty: "Article 2, paragraph 1: A treaty means an international agreement concluded between states in written form governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation." So we already have a good point of view of what is a treaty, but it's something that I really want you to keep in mind. It's a very important element. The Vienna Convention on the Law of Treaties is a crucial document when we talk about treaties, but it's not the Bible. We can have still competing regimes governing states because, at the end of the day, international law, as we discussed last week, means that the main stakeholder is the state, and states are free. So as long as they want, as long as they express their concern, they can somehow agree to disagree with the Vienna Convention on the Law of Treaties. Except with a few exceptions, states can do what they like regarding the form, but also regarding the content. Although right now, I must say that regarding the content, there is a bit of restrictions, at least from my perspective, regarding the jus cogens, which we'll see at a later stage.
So definitely, um, the Vienna Convention on the Law of Treaties establishes the general regime, what we call the *lex generalis* regime. But nothing would actually prevent states from establishing what we call *lex specialis* regimes, so exceptions to the generality of the Vienna Convention on the Law of Treaties.
So let's discuss together now that we've seen the global definition, uh, of a treaty by the Vienna Convention. Let's discuss the main characteristics, the main features of a treaty. So for me, I would say first that it is a concord of wills. And for me, and this concord of wills can be conveyed expressly or tacitly, is written or in an oral form. And this is how we distinguish also international agreements from unilateral acts that we've been mentioning last week. But do you remember that the Vienna Convention on the Law of Treaties mentions only written treaties or formal treaties? But at the end of the day, states are free. And we have notably in domestic case law some examples, notably one when the US tribunal decided that just a telephone call between the government of Honduras and the US Coast Guard was sufficient to establish an informal agreement. And, um, that's also the reality that domestic judges can make their own interpretation. And I mean, this would be interesting to have a look at, to dig about the specific circumstances of this case. But yes, depending on the context, it might be that just the phone call between two state authorities should be, could be interpreted as creating rights and obligations.
And I want to mention that the Vienna Convention on the Law of Treaties also excluded what we would say phone calls as creating rights and obligations as being agreements. But it does not exclude this possibility. So Article 3 of the Vienna Convention is very clear, saying that "the fact that the convention does not apply to international agreements that are not in written form shall not affect the legal force of such agreements." So remember what I said: states are free, and they can even derogate to the Vienna Convention on the Law of Treaties. But what is clear is that you need to prove the consent. I mean, it's the basis of all international law, and it's been said and repeated again and again in this, um, ICJ advisory opinion on the reservation to the Genocide Convention. The Court was very clear that "it is well established that in treaty relations, a state cannot be bound without its consent." And when we're going to discuss about the application of treaties and also circumstances in which we can derogate to a treaty, we will see that when a state had its consent actually violated at the beginning, either by coercion or by fraud, we're going to discuss that, well, a state is not considered as being bound by the treaty.
Also, the second characteristic of an international treaty is the fact that it should actually bind two or more subjects of international law. So based on that, we can have bilateral treaties, so between only two states. Plurilateral treaties, like two, three, four, what, three, four, five, six, seven states. We can have also regional treaties or treaties between more subjects of international law but in a specific region, like we have, for instance, with the European Convention of Human Rights, with the Inter-American Convention of Human Rights, or with trade agreements that we have in specific regions. But we can also have multilateral agreements, so agreements actually binding all states, being universal. And the fact is that any, any entity, any institution that possesses an international legal personality can create norms and in this sense can enter into a treaty. So as long as you have, as a legal personality in the international legal system, you can actually be part of the process of drafting, negotiating, and then concluding a treaty. And it's something very clear that in international law, also based on the case law of the ICJ, International Court of Justice, with the advisory opinion on, on what we call the advisory opinion on K. Bernadotte on the legal reparation at the service of the United Nations, that yes, international organizations have an objective legal personality. So as we said before, the Vienna Convention only deals with treaties between states. But in practice, yes, we have international organizations concluding treaties with states, but also between international organizations. We might also have, like, very specific international entities that have some kind of legal personality and that can enter into treaties, like the Holy See, like the ICC, for instance. But also some rebel groups, some non-state actors that also had this capacity, not only for peace agreements to to to to be recognized at least for the specific purpose to to be, um, to possess, um, legal personality.
So this is one of the most famous treaties between an international organization and a state, and it is a treaty between the UN and the United States of America regarding the HQ in New York. And of course, you need an agreement, you need to know exactly what the United Nations are entitled to, what are the obligations of the UN, and in exchange, what are the obligations of the USA regarding the UN, because it's it's a very sensitive, um, topic to get the HQ on the territory of the state.
So something that is also very important regarding the main characteristic of a treaty is that, um, we don't have any specific requirement regarding the form of the treaty, except when it comes to the Vienna Convention on the Law of Treaties that it had to be written. But I told you, in practice, they do what they want. So there is absolutely no form required. This has been confirmed by the ICJ in this case, the Temple of Preah Vihear. And, um, according to you, I'd like you to maybe take a break and discuss and and and think about it, like, what would be the main issue with the fact that we don't have a required form? Well, here, one of the main issues is the fact that most of the time, it would end up, like we had in the case of Pavia, like we have in Qatar, like we have in the case between Turkey and Greece, like states would disagree over the legal qualification. States would say, "Oh, this is not a treaty." Another state, "Yes, it is a treaty." So we will discuss it right now.
So, yes, states, when they do create a treaty, they want this treaty to produce rights and obligations that are binding, okay? But in doing so, they don't have to get any specific form. I'm sorry, because now my slides are going in all, all, all directions. So the fact that the effect of a treaty are legally binding, it is what makes the distinction between another instrument, like a memorandum of understanding, a joint statement, a communiqué, with what is an international treaty. And what is important is to identify the consent to be bound by the state. And what I said before is still true. The problem arises when two or more states actually disagree about the legal status of the documents, notably when it comes to political declarations.
With the case of Aegean Sea Continental Shelf, Greece and Turkey before the ICJ in 1978, it's very interesting, because we had a communiqué of the two governments. They had like political meetings, and after these political meetings, they met up in front of the press and they said, "Okay, we decide that we should actually have our dispute solved before the ICJ." So based on that, Greece decided, "Oh, this is a treaty. I'm going to take Turkey before the ICJ." But at the end of the day, the ICJ had to identify either this communiqué was expressing consent to be bound by Turkey or not. And first of all, the court had to look at either we had a signature or not, either we had a ratification process from Turkey. And what the court found is that this communiqué was actually expressing the future will of Turkey and Greece to actually set up another agreement to go before the ICJ to settle the dispute, but that this communiqué in itself should not be interpreted as creating rights and obligations for Greece and for Turkey.
We had the same situation regarding the case Qatar versus Bahrain. And also an interesting case. In this case, you may remember, if you had a look at the case, that back to the end of the 80s and 90s, under the auspices of the King of Saudi Arabia, the Emir of Qatar and the Emir of Bahrain, the kind of negotiated territorial and access and island issues. And and, um, at the end of those negotiations, they ended up with a document that was entitled "Minutes." And same, we had this issue. Qatar decided to go after Bahrain saying, "Hey, now we have a real treaty, and based on that, the court has jurisdiction to solve any dispute." And what is interesting is that in this case, the Bahrain minister made it very clear that at no point when he signed these minutes, he thought that it would actually commit the state of Bahrain. Yet, the court found that contrary to what Bahrain was saying, well, the minutes were actually creating rights and obligations for parties. And just decided that the court had jurisdiction and decided to, yeah, to give a judgment.
And it's very important because with this main characteristic, which is producing rights and obligations that are binding, with this characteristic, we can distinguish a treaty from other forms of agreement that are not binding, like we have gentleman's agreements, we have memorandum of understandings, we have like, like *modus vivendi*, minutes, communiqué. We have a large diversity of texts internationally. And you might say, "But what is the point? Why do states not want to have a treaty?" Well, sometimes they might just not want to get obligations based on on on those declarations. Sometimes they want those documents to remain secret. Sometimes they do believe that it's too soon to actually get an obligation. Sometimes they might say, "I don't want to have my case before an international tribunal like the ICJ." So there is many reasons why a state would actually prefer to have another instrument than a legally binding one. So in the history of international law, we had a lot of misunderstanding along what is a treaty and what is not a treaty. And it is highly recommended for anyone that is actually drafting a treaty to actually include some provision like this one: "like the instrument will come into operation on the understanding that it does not constitute a treaty and that it should not be published as a treaty and it should not be registered as a treaty." Or for instance, you could have also this kind of provision: "Any dispute about interpretation or application of this memorandum shall be resolved by consultation between the participants and shall not be referred to any national or international court tribunal or third party for settlement." So if you include those provisions, you are on the safe line. So this is something that I would highly recommend.
And, um, the latest characteristic of what is a treaty, and it's also, um, a must, you don't have a treaty if if you don't have this characteristic, is that this agreement, this expression of the consent to be bound, should be governed by international law. So not only the treaty must be constructed, built in the light of international law and following international processes, but also regarding the legal effects of the treaty, it has to be produced in the international legal system. So, for instance, you have a lot of agreements that are financial agreements, for instance, between states, like the loan agreement between Denmark and Jordan from 1966. And it's very clear that the agreement and all the rights and obligations that are deriving from this agreement shall be governed by Danish law. So in this case, states are in a contractual, contractual relationship based on domestic law, but it's not a treaty. So in case of dispute, you don't go to the court, there is no responsibility of the state in the international legal system. So if Denmark, or if mainly in this case, if Jordan is not happy with the behavior of Denmark, whom should they seize? What should they seize? The Danish court? It's it's very different.
And we might end up with situations when you have one part of the agreement that is actually governed by international law, one part that is governed by domestic law. As long as we have one part that is governed by international law, we can actually separate and split the parts of the treaty and consider that at least some provisions are governed by international law, why some provisions are governed by domestic law. So in order to determine whether you have an international treaty or not, well, you need to, as I said before, you need to establish a consent to be bound. And in order to do so, to do so, you can try to find some proof, some indicators, evidence. First of all, if you have provisions related to entry into force, that would be a good sign. Also, if you have the presence of signature, ratification elements, for instance, this would be interesting, like, you know, the court did in the case of Aegean Sea Continental Shelf, Greece and Turkey, said there is no signature. Also, some some terms, some verbs. I mean, it's it's a question of technology, terminology, sorry. Um, if I say "states should actually comply," but if I say "states must," it is understood that states will. You understand? Even the terminology makes a huge difference. Also, in case of dispute, you can always go back to the circumstances in which the instrument was actually adopted. And that if there is no reference to registration, also it might be an evidence.
So intention of the parties is also a key element in identifying either it's a binding instrument or not. Although we've seen the case of Bahrain, that the declaration of the minister of Bahrain was not taken into consideration. We put a lot of focus on the content, on the terms of the instrument. We take position of the context, circumstances. We may also have a look at the conduct of the parties during the negotiation. But at the end of the day, the title of the instrument is not so important. It might be a communiqué. If it aims at producing rights and obligations, we don't care. And it might be called a treaty. If it's not aimed at producing rights and obligations, it won't be legally qualified as a treaty and won't actually entail the legal consequences of being a treaty.
And when it comes to domestic law requirements, it's then not really related to the fact that it's a treaty or not. We're going to discuss it later at a later stage when it comes to municipal law requirements. It's more related to the validity or not of an instrument, but it will be for a later session.
So to sum up with this session, I'd say that a treaty is an international agreement, generally concluded in writing, generally because not all the time, between two or more subjects of international law, because we've seen not only states can actually enter into treaty law, and in which they express their joint will to assume to assume obligations governed by international law or to renounce rights, whether this agreement is embodied in a single instrument or in two or more related instruments and whatever its particular designation.
So we might have bilateral treaties that are concluded between two parties, multilateral treaties, like we've seen. And they are mainly the same, except when it comes to the way they are actually concluded and negotiated, something we're going to see at the latest at the next session. So keep in mind also that international law is governed by the principle of contractual freedom. So there is no specific form required for treaties, subject to evidence, subject to clear interpretation. We can even recognize that oral agreements might be a treaty, although they are not very common, because you can imagine that it does not bring a lot of legal certainty. Yet, it's an option. And also keep in mind that treaties can have many names, and this does not really matter as long as the four features and characteristics that we've mentioned before are gathered, we have a treaty.
So you might take a moment, take a break to think about all the titles, all the names that you met while discussing treaties. So for instance, yes, first, you would have is treaty, like we have the Treaty on Non-Proliferation, for instance. Most of the time, when states decide to use "treaty," most of the time it is reserved for very big, big, big topics, multilateral topics, like the Treaty on Non-Proliferation, for instance. You might also find convention, like Convention on the Prevention and Punishment of the Crime of Genocide, Convention on the Elimination of Discrimination Against Women. And most of the time, when states decide to use the term convention, well, they tend to adopt global provisions, but in a less significant area than treaties. So it will be most of the time for human rights laws that you have, like Convention Against Torture, Convention Against, Elimination of Racial Discrimination. We might also find the term agreement, which most of the time relates to specific areas like finance, culture, trade, economic or technical agreement. And you might even find arrangement, which most of the time designates a treaty that governs secondary or provisional matters that were actually in a previous framework treaty. Well, I think that at some point, we're going to discuss about the old climate change perspective, like for instance, with the Kyoto Protocol. It was an arrangement, also called protocol, but somehow arrangement of the UNFCCC. And also sometime, as we've been discussing, even exchange of letters, exchanges of diplomatic notes can constitute a treaty. And when it's an exchange of letters, most of the time we're talking about topics that are really not so relevant at the end of the day. Here you find also a protocol. This is Optional Protocol One to the ICCPR, International Covenant on Civil and Political Rights, which is an addition to a first instrument. So in this case, we had the ICCPR creating rights and obligations regarding civil and political rights, and this optional protocol is actually giving jurisdiction to the Human Rights Committee to receive individual communications by individuals against state parties. So you see, it is an addition to the first treaty.
And to end up, I would like you to make the distinction also between what I call law-making treaties and treaty-contracts. So if you have a look at this one, it's this convention between the USA and the French government for the avoidance of double taxation and prevention of fiscal evasion. So according to you, is it a treaty-contract or a law-making treaty? Definitely, it is some kind of contract, also governed by international law, but somehow it does not create international obligations for the whole international community. It's a treaty that is binding France and USA. And we have millions of treaties that are similar to this one. But if you have a look at this treaty, for instance, Treaty on the Prohibition of Nuclear Weapons, that is one of the latest ones that's been negotiated a few years ago. Is it a contract treaty or a treaty law-making? A law-making treaty, definitely a law-making treaty, because it's it's creating very, very general obligations having implications for the whole international community.
So I would like to thank you for listening to this session, and, um, we stay in touch and definitely looking forward seeing you very soon.